Clift v. City of South Burlington
Annotate this Case
Clift v. City of South Burlington (2006-155)
2007 VT 3
[Filed 18-Jan-2007]
ENTRY ORDER
2007 VT 3
SUPREME COURT DOCKET NO. 2006-155
DECEMBER TERM, 2006
Agnes Clift, John Clift, } APPEALED FROM:
Sue Metcalf, Angela Crady, }
Kathryn Flynn, Francis Myers, }
Ruth Milhouse, Mary Lou } Chittenden Superior Court
Newhouse, et al. }
}
v. }
}
City of South Burlington } DOCKET NO. S0468-05 CnC
Trial Judge: Ben W. Joseph
In the above-entitled cause, the Clerk will enter:
¶ 1. Petitioners are a group of South Burlington voters who signed
a petition requesting that the City of South Burlington add an advisory
article to its 2005 town-meeting warning. The City refused because the
article did not relate to "city business." Petitioners filed a complaint
in Chittenden Superior Court, claiming that the South Burlington City
Council was required by law to include the article in the warning. The
superior court granted summary judgment to the City and we now affirm.
¶ 2. Petitioners and other South Burlington residents, totaling
more than five percent of city voters, petitioned the Council to include
the following article in the 2005 annual town-meeting warning:
Shall the City of South Burlington, on behalf of concerned
citizens, advise the City Council to ask our state legislators, in
writing, to enact legislation that will protect young girls by
requiring clinics to notify at least one parent prior to providing
a surgical or chemical abortion to their minor daughter, with
special provisions to protect girls in abusive situations?
At a duly warned meeting in April 2005, the Council took up for
consideration the issue of the 2005 town-meeting warning. After a
discussion that included Council members and city residents, including
several petitioners, the Council decided not to submit the petitioned
article to voters because it did not concern "city business." This led the
Council to approve the warning without inclusion of petitioners' article.
¶ 3. In May 2005, petitioners filed a challenge to the Council's
decision in superior court, seeking an order-in the nature of mandamus-to
compel the City to include the advisory article either in the 2006
town-meeting warning or a special-meeting warning. In reply, the City
asserted that its refusal to include the article in the warning was within
its lawful discretion. The parties filed cross-motions for summary
judgment. In March 2006, the superior court granted the City's motion,
opining that the article submitted by petitioners, "does not relate to city
business in the sense that it does not address a matter under the general
supervision, legal authority or control of the City or of City voters."
This appeal followed.
¶ 4. We review a grant of summary judgment using the same standard
as the trial court. In re Griffin, 2006 VT 75, ¶ 11, ___ Vt. ___, 904 A.2d 1217. We will affirm the lower court's decision "if there are no
genuine issues of material fact and the moving party is entitled to
judgment as a matter of law." Id. There are no material facts in dispute
in this case; however, the parties disagree as to whether including
petitioners' article in the warning is a ministerial duty of the City
compelled by law.
¶ 5. Under 17 V.S.A. § 2642(a), a municipality is required to
include the following in its annual town-meeting warning:
the date and time of the election, location of the polling place
or places, and the nature of the meeting or election. [The
warning] shall, by separate articles, specifically indicate the
business to be transacted, to include the offices and the
questions to be voted upon. The warning shall also contain any
article or articles requested by a petition signed by at least
five percent of the voters of the municipality and filed with the
municipal clerk not less than 40 days before the day of the
meeting.
While petitioners complied with the procedural requirements of the
statute-that the petition be signed by more than five percent of voters and
submitted more than forty days before the meeting date-our precedent
indicates that the City was nonetheless justified in declining to include
petitioners' article in the town-meeting warning.
¶ 6. Over the past thirty-seven years, this Court has consistently
held that municipalities must have some discretion over the issues that are
presented to voters at town meeting. Beginning with Royalton Taxpayers'
Protective Ass'n v. Wassmansdorf, we have interpreted our statutes to
compel municipalities to present an article to voters only when "the
purpose stated in such petition set[s] forth a clear right which [i]s
within the province of the town meeting to grant or refuse through its
vote." 128 Vt. 153, 160, 260 A.2d 203, 207 (1969). In Whiteman v. Brown,
we determined that the predecessor statute to 17 V.S.A. § 2642(a)
implicitly limited a municipality's duty to warn to "business to be
transacted." 128 Vt. 384, 387, 264 A.2d 793, 795 (1970). "If the article
sought to be included does not, in any way, constitute business proper and
appropriate for transaction by the meeting, the statute ought not to be
construed to compel its inclusion." Id. We dealt specifically with the
issue of whether a properly petitioned advisory article must be warned in
Brewster v. Mayor of Rutland, 128 Vt. 437, 266 A.2d 428 (1970). There, we
held that the effect of the advisory article petitioned by local voters
would be nugatory and serve no lawful purpose and therefore declined to
issue a writ of mandamus to compel its inclusion in a special-meeting
warning. (FN10) Id. at 440, 266 A.2d at 430. More recently, in Town of
Brattleboro v. Garfield, we stated that the statutory right of voters to
petition an article for a municipal vote is "subject to the restriction
that the business petitioners seek to conduct at the meeting is properly
delegated to the voters' authority." 2006 VT 56, ¶ 12, ___ Vt. ___, 904 A.2d 1157.
¶ 7. We find petitioners' attempt to distinguish the present case
from Wassmansdorf and its progeny unavailing. Here, petitioners requested
a town-meeting vote on an issue wholly outside the purview of the City and
its voters. Neither South Burlington's voters nor its city council are
required to advise the Legislature on a bill pending at the State House.
While the City could have warned the advisory article and presented it to
voters, it was under no obligation to do so. To decide otherwise would be
to subject the town meeting-a forum primarily for conducting municipal
business-to debate on every social issue of interest to voters. Allowing
the City discretion to warn advisory articles, such as the one presented by
petitioners, furthers the Council's ability to balance the efficient
transaction of city business with the provision of a local forum for
discussing state and national issues.
¶ 8. Petitioners' claim that the 1978 amendment to 17 V.S.A. §
2103(27) defining "public question" to include nonbinding articles requires
the Council to warn the petitioned advisory article is likewise without
merit. The amendment authorizes nonbinding advisory votes at town meeting.
It does not, however, change our general analysis that § 2642(a) provides
municipalities with discretion over whether to present an article to
voters-even a nonbinding article included under § 2103(27)-when it does not
at all relate to municipal business or any matter falling within municipal
authority. Mandamus is inappropriate here because inclusion of
petitioners' article in the town-meeting warning was not a ministerial duty
compelled by 17 V.S.A. §2642(a), and we therefore uphold the trial court's
grant of summary judgment in favor of the City. See Sagar v. Warren
Selectboard, 170 Vt. 167, 171, 744 A.2d 422, 426 (1999) (holding that
mandamus is generally inappropriate for discretionary decisions absent a
showing of arbitrary abuse of discretion).
¶ 9. As a final matter, we briefly consider petitioners'
argument that the City's action in refusing to warn the advisory article
was a violation of petitioners' right to assemble under Chapter I, Article
20 of the Vermont Constitution. Petitioners offer no legal authority for
their claim. On the contrary, they admit that they lack case law to
support their position and rely on faulty reasoning to reach the conclusion
that a town-meeting vote on a petitioned advisory article is a
constitutional right. Petitioners reason that because Chapter I, Article
20 "has remained unchanged for 229 years" and within that time, use of the
nonbinding, advisory article "has been a regular feature of town meeting,"
there must exist a constitutional right to a town-meeting vote on
petitioned advisory articles. One does not necessarily have anything to do
with the other, however, as Vermont municipalities have historically had
the discretion to present advisory articles to voters. Thus, we are
unpersuaded by petitioners' constitutional claim.
Affirmed.
BY THE COURT:
_______________________________________
Paul L. Reiber, Chief Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
_______________________________________
Brian L. Burgess, Associate Justice
_______________________________________
William D. Cohen, Superior Judge,
Specially Assigned
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Footnotes
FN1. While the Wassmansdorf line of cases decided in the late 1960's and
early 1970's involved predecessor statutes to the one at issue-including 24
V.S.A. § 704-the language of those statutes was sufficiently similar to 17
V.S.A. § 2642(a) to warrant a similar interpretation here.
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